ESSA oversight hearing: Full transcript

On Tuesday, April 12, 2016, the U.S. Senate Committee on Health, Education, Labor and Pensions held a full committee hearing titled “ESSA Implementation in States and School Districts: Perspectives from the U.S. Secretary of Education,” the first of a series of oversight hearings on the Every Student Succeeds Act (ESSA). Chairman Lamar Alexander delivered an opening statement to Secretary of Education John B. King, Jr. and asked Secretary King two rounds of questions. What follows is the transcript of these talks.

Of particular interest to those of us at Fordham (besides the very important back-and-forth about the appropriate federal role in education and the balance of power between the legislative and executive branches) is the issue of flexibility around eighth-grade math assessments for advanced students. That is addressed toward the end of the transcript.

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Senator Alexander Opening Statement

Mr. Secretary, as you know, I urged the president to nominate an education secretary because I thought it was important to have a confirmed secretary accountable to the United States Senate when the department was implementing the new law fixing No Child Left Behind.

You have sworn to discharge your duties faithfully. That is your oath of office, and you have said in hearings here that you would “abide by the letter of the law.”

So this hearing is about whether your employees are doing that or not doing that.

I don’t think that I need to rehearse the fact that this bill passed by a huge margin, 359-64 in the House and 85-12 in the Senate. The president signed it and called it a “Christmas miracle.”

The reason we were able to achieve such unusual unanimity and consensus is, to put it bluntly, that local school boards, classroom teachers in states, had gotten tired of the U.S. Department of Education telling them so much about what to do.

It wasn’t just Republicans complaining or governors complaining—you often hear that kind of thing when it comes to giving responsibility to those closest to the children. This came from the school superintendents, from the National Education Association, the American Federation of Teachers, chief state school officers, almost everyone involved in education.

There hasn’t been a broader coalition in a long time.

Their objective was the fact that the Department of Education had become a national school board, telling Kansas what their standards must be, telling Tennessee how to fix failing schools, telling Washington state how to evaluate teachers.

So the legislation we passed not only got rid of those things—we went further in a remarkable way and have explicit prohibitions on what a future secretary might do.

This was all a dramatic change; it’s called the “largest devolution of responsibility for education from the federal government to the states in twenty-five years.”

But it isn’t worth the paper it’s printed on if not implemented properly.

This is the second hearing in what will be at least six oversight hearings of implementation of the new law. Already we are seeing disturbing evidence of an Education Department that is ignoring the law that the twenty-two members of this committee worked so hard to craft.

It wasn’t easy to pass a law. There were crocodiles at every corner of the pond.

One of those—and I see Senator Bennett here, and we had vigorous discussions over this—was the issue of “comparability.” That’s a provision that was put into the law first in 1970. It says school districts have to provide at least comparable services with state and local funding to Title I schools and non-Title I schools.

But the law also says that school districts shall not include teacher pay when they measure spending for purposes of comparability.

This committee has debated several times whether or not teacher pay should be excluded. Senator Bennet for example: He not only felt very strongly about this, he had a proposal to change it. It wasn’t adopted. I felt strongly about it, I offered an amendment to change it. It was defeated.

Ultimately, the United States Congress made two decisions about this issue, as reflected in the law we passed last year.

First, we chose not to change the comparability language in the law, so the law still says teacher pay may not be included in that computation.

And second, we added a reporting requirement—that school districts report the amount they spend on each student, including teacher salaries, so that parents and teachers could know what’s being spent and could make their own decisions about what is fair and what is equitable, rather than the federal government mandating it.

One thing that the law that the president signed in December did not do was change the requirement that says teacher salaries may not be included when you’re computing comparability.

But here’s what your department did on April 1.

You tried to do what Congress did not do last year. And you tried to do it by regulating another, separate provision in the law.

In a proposed rule making session, here’s what you proposed: forcing districts to include teacher salaries in how they measure their state and local spending. And to require that state and local spending in Title I schools be at least equal to the average spent in non-Title I schools.

If that were adopted, your proposal would require a complete, costly overhaul of almost all the state and local finance systems in the country, something we did not pass in the law.

It would force teachers to transfer to new schools, something we did not pass in the law.

It would require states and school districts to move back to the burdensome practice of detailing every individual cost to comply with “supplement, not supplant,” when the law as expressively written was to relieve some of that burden.

According to the Council of Great City Schools, your proposed rule would cost $3.9 billion dollars—just for their sixty-nine urban school districts—to eliminate the differences in spending between the schools.

Now, I’m not interested today in debating whether it’s a good idea or a bad idea to include teacher salaries when computing comparability—the plain fact of the matter is that the law specifically says the department on its own cannot do it.

Mr. Secretary, not only is what you’re doing against the law; the way you’re trying to do it is against another provision in the law.

To accomplish your goals on comparability, you are using the so-called “supplement, not supplant” provision that is supposed to keep local school districts from using federal Title I dollars as a replacement for state and local dollars in low-income schools.

Now, according to a Politico story published on December 18, the former secretary of education said: “Candidly, our lawyers are much smarter than many of the folks who were working on this bill.”

I don’t know whether that means the twenty-two senators on the committee, or all of the staff sitting behind us.

I am not sure how smart we are, but we’re smart enough to write a law in plain English, and we’re also smart enough to anticipate that your lawyers would attempt to ignore what we wrote and try to move around it.

So we included specific prohibitions in the so-called “supplement, not supplant” provision that would prohibit you from doing the very things you are proposing to do.

Section 1118(b)(4) says, “Nothing in this section shall be construed to authorize or permit the Secretary to prescribe the specific methodology a local educational agency uses to allocate State and local funds.” And Section 1605 said, “Nothing in this title shall be construed to mandate equalized spending per pupil for a State, local educational agency, or school.”

Mr. Secretary, I’ll have more to say about this in my question time, and I am going to ask you about this. But I want you to know—and particularly those lawyers who think none of us are very smart up here—I want them to know that I’m smart enough, and I believe there are others too, to use every power we have to make sure the law is implemented the way we wrote it. Including our ability to overturn such rules when they become final, and including using the appropriations process.

And if you try to force states to follow these regulations that ignore the law, I’ll encourage them to request a hearing, which they have a right to do with the department. And if they lose, I’ll encourage them to take you to court.

I’m not the only one who can read the law. You’re going to come against a coalition of groups as broad as anything we have ever had in education—of governors, teachers’ organizations, chief state school officers—who are tired of your department telling them so much about what to do about the fifty million children in the one hundred thousand public schools.

They’ve already sent you a letter about that.

Wisconsin Superintendent Tony Evers, a well-respected chief state school officer and a member of the rulemaking committee, said last week that "congressional intent isn't necessarily being followed here.”

The school superintendents’ association says that the prohibitions in the law, “in tandem with Congress' deliberate act of leaving comparability unchanged, makes a seemingly tight case against expanding ‘supplement, not supplant.’”

You’ve testified here that you will “abide by the letter of the law.”

It’s not abiding by the letter of the law to require local school districts to use teacher salaries and equalize spending between Title I and non-Title I schools.

It’s not abiding by the letter of the law to use the “supplement, not supplant” provision to achieve your goals for comparability when Congress debated this issue and chose not to make any changes in the law.

I’m making such a point of this today because we’re at the beginning of the implementation of a law that affects, as I said, 3.4 million teachers and fifty million students in one hundred thousand public schools.

The states are busy working on their plans for Title I money. They have a clear law that changes the direction of what federal policy is.

I’m determined to see the law is implemented in the way that we wrote it.

I think it’s important at the beginning of this implementation to make sure that you, as well as those who work for you at the department, understand that.

They are not elected to anything. And you are confirmed by the U.S. Senate to faithfully execute the laws, and you said you would abide by the letter of the law in your confirmation proceeding, and I expect that to be the case.

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Senator Alexander First Round of Questions

Senator Alexander: Preliminarily, Dr. King, we’re talking about Title I plans for federal dollars. States may apply for those dollars, submitting a plan, and that constitutes about 4 percent of all the money that state and local governments spend on one hundred thousand public schools. Now, there’s more federal money than that, but it’s not covered by Title I. So we’re talking about for that amount of money, what instructions you can give. And second I would ask you this: You mentioned guidances coming out. Do you agree that guidances are merely illustrative and are not intended to be legally binding on local school districts?

Dr. King: That’s right, as we’ve discussed. Guidance is intended to provide clarity and to provide examples of best practices. We do not believe guidance has the force of law. It often includes our interpretation of the law, again, to provide clarity.

Senator Alexander: Thank you, Dr. King. Let’s talk about comparability. There’s a provision in the act, as I mentioned in my opening comments, first put there in 1970, that says school districts have to provide at least comparable services with state and local funding to Title I schools and non-Title I schools.

Now, the law also says on comparability in Section 1118 (c)(2)(B), for purposes of this subsection, in determining that computation, “Staff salary differentials for years of employment shall not be included in some determination.”

Now do you agree, yes or no, the law prohibits requiring local school districts to use teacher salaries when demonstrating they’re providing Title I schools with at least comparable services as non-Title I schools?

Dr. King: You are referencing the comparability section as opposed to the “supplement, not supplant” section.

Senator Alexander: That’s correct.

Dr. King: Yes, I believe that’s an accurate interpretation of the comparability section of the law.

Senator Alexander: You’ve had a chance to study the law. In your opinion, did Congress make any changes in the comparability section when we reauthorized the law last year?

Dr. King: I don’t believe there were changes to the comparability section, but there were changes to “supplement, not supplant.”

Senator Alexander: Did we change section 1118(c)(2)(B), the comparability section?

Dr. King: To the best of my recollection, no.

Senator Alexander: No we didn’t change it. Now, your proposal in April to the negotiated rule making committee, on a different section—“supplement, not supplant”—says a local school district may determine the methodology it will use to allocate state and local funds provided that methodology results in spending of local funds in a way that’s equal to or greater than the average spending per pupil in non-Title I schools.”

And you also say that methodology must provide a basic educational program as defined under state and local law that is used in each Title I school. Would you agree that that language the method that local school districts must use?

Dr. King: No, I appreciate you making the distinction between comparability and “supplement, not supplant”.

Senator Alexander: Wait a second, in the “supplement, not supplant” [section], it says provided that that methodology that the local school uses 1) provides at least the average spending per pupil in Title I schools as is provided in non-Title I schools I talked about and 2) provides the basic educational program. How could that not be the defining of a methodology that a local school district must use?

Dr. King: The proposed regulation is careful to maintain districts’ flexibility with determining…

Senator Alexander: Now, wait a minute Mr. Secretary. The words are “provided that methodology must 1) and 2).” The question is, are you not defining a methodology when you use the words “providing that methodology is X and Y.”

Dr. King: We are not. We are laying out what criteria are necessary…

Senator Alexander: But you use the words “provided that methodology.” “Provided that methodology” are the words you used.

Dr. King: …followed by a set of words that describe the criteria by which that methodology would meet the principal of “supplement, not supplant”.

Senator Alexander: So you define the methodology?

Dr. King: We do not.

Senator Alexander: You do! How can you sit here and say that? Now, we may not be very smart up here—or I may not be, let me speak for myself. I can read, “provided that methodology does X, does Y.” You are defining a methodology when what we put in the law was that nothing in that section of the law “supplement, not supplant”—which has nothing to do with the comparability section—nothing in this section shall be construed to authorize or permit the secretary to prescribe the specific methodology a local education agency uses or to equalize local spending.

Or in other words, we anticipated that you were going to try to not follow the law, and we wrote in the law you couldn’t prescribe a specific methodology.

Dr. King: As I indicated, we do not prescribe the specific methodology; we leave the methodology to districts.

Senator Alexander: “Provided that methodology results in X, provided that methodology results in Y.” How is that not providing a methodology?

Dr. King: And those are criteria in how to evaluate a methodology that would be determined by a district that would ensure that the Title I dollars are, in fact, supplemental.

Senator Alexander: Mr. King, do you how ridiculous the statement is you just made? If I read you plain English, if I say A, B, C and you say it’s D,E,F, how can that be?

Dr. King: Again, I would characterize it differently. The question here is, a methodology that is district-determined must achieve A and B. And A and B ultimately define “supplement, not supplant,” which is to ensure that the Title I dollars are used in a way that is not supplemental.

Senator Alexander: Well, the law intended that states would have more flexibility in local school districts. I’m already over my time. I’ve already violated my own rule. So I’ll conclude and stay for a second round of questions.

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Senator Alexander Second Round of Questions

Senator Alexander: Senator Murphy has said in his exchange with you that you weren’t prescribing a methodology in the “supplement, not supplant” section we were discussing. You were merely saying that states and local school districts could use their own methodology as long as they got the result that was desired. Is that right?

Dr. King: They can use their own methodology in order to ensure that they fulfill the principle of “supplement, not supplant.”

Senator Alexander: And in defining what we mean by—in your proposed rule, and I was listening to what you said when you described what that role was. Would it be accurate to say that the local education agency—the school district—has to demonstrate that the combined state and local per-pupil expenditures, including personnel expenditures, at each Title I school is not less than the average combined state and local per-pupil expenditures at non-Title I schools? Is that about right?

Dr. King: It’s that the allocation of state and local funds to Title I schools has to be at least equal to the average non-Title I school. An approach might include looking at staffing and program provision, but another approach might be a student funding formula approach.

Senator Alexander: But in any event, it would have to include teachers and personnel, right?

Dr. King: It would include the total allocation of state and local dollars.

Senator Alexander: Did you realize that that’s precisely the definition in Senator Bennett’s amendment on comparability when he sought to amend Section 1120, which didn’t succeed, and which he acknowledged this morning didn’t succeed? So the effect of your proposed rule is to change the comparability law, which Congress did not change.

Dr. King: Again, we’re not addressing comparability here, we’re addressing “supplement, not supplant.”

Senator Alexander: No, but the effect of it would be. You’d have the same effect if you were to change the comparability law, which has been in law since 1970 and to which we did not make changes.

Dr. King: That would depend on the circumstances in a given district. But the key in the district is that the Title I dollars would be genuinely supplemental.

Senator Alexander: Well, you’re saying that in order to do that, you’ve got to have the spending [for] Title I schools—including the teachers’ salaries—not less than the average combined state and local expenditures [for] the non-Title I schools. That’s comparability, that’s what we didn’t change.

Dr. King: Now again, here, because the focus is on “supplement, not supplant,” the question is whether or not the total local and state effort is at least equal to the non-Title I school. And a school can address a gap in effort through a variety of mechanisms. They can add advanced coursework, they can add a preschool program, they can take a number of strategies. It’s not saying the services need to be the same, its saying that the allocation of Title I dollars has to be supplemental.

Senator Alexander: Well, but you’re saying the total state and local effort for the non-Title I schools has to be the same [as] for the Title I schools, right?

Dr. King: Has to be at least equal to the average non-Title I school, which, again, could result in variety within a district.

Senator Alexander: Which, again, is comparability. I mean, that’s what comparability is. I sought to change it by introducing an amendment to do as Senator Burr suggested: allowing federal dollars to follow children from low-income families to the schools they attend. That was rejected. Senator Bennett had his amendment. The changes in the “supplement, not supplant” law are, to some extent—maybe a large extent—due to recommendations directly from the Center for American Progress, the Federal Education Law Group, and the American Enterprise Institute.

I’m going to read you a paragraph which they said, and I ask you to comment on it. They say:

It’s important that the proposed change, the one that was made, that we made in “supplement, not supplant,” would not look at whether the amount of state and local money a Title I school receives is equitable. Given the problems caused by the “supplement, not supplant” test, this issue should be addressed on its own, separate from other Title I fiscal issues. Concerns over equity can be addressed through Title I’s comparability requirement. 

What would you say to that?

Dr. King: Here, I think part of what they’re referencing is the number of problems that we saw with the “supplement, not supplant” approach under No Child Left Behind—that, indeed, it was a burdensome process that did not achieve the desired goal of ensuring that Title I dollars are supplemental. We are not making a change to comparability; we are making a change to “supplement, not supplant” to reflect a change in law. “Supplement, not supplant” is different under ESSA, as you know, than under NCLB, and we were asked by a variety of stakeholders to provide clarity on implementation of “supplement, not supplant” under ESSA. And that’s what we proposed to the negotiated rule makers.

Senator Alexander: What you proposed, then, must have the effect of equal spending by state and local dollars in Title I schools as well as non-Title I schools before you get the Title I money? Is that not correct?

Dr. King: It does not require equal spending. It requires that the state and local funds in Title I schools are at least what is being spent in the average non-Title I school. So in a given district, you would still see variety in spending.

Senator Alexander: Yeah, well, that equalizes spending. Well, if you say you have to spend at least as much here as the average of here, that’s what we call equal spending, isn’t it?

Dr. King: No, the decision to use the average of non-Title I spending would mean that there is a variety of spending levels in the non-Title I schools.

Senator Alexander: Section 1605 of the law says, “Nothing in this title should be construed to mandate equalized funding per pupil for a state and local educational agency or school.” What would you say to that?

Dr. King: Again, this wouldn’t equalize spending. What it would say is that in the Title I school, you have to spend at least as much of state and local resources that is spent in the average non-Title I school. There would be a range of spending within non-Title I schools, so you would not be requiring states to spend the same in all schools. But you would be ensuring that the Title I dollars are, in fact, supplemental and are not being used to backfill.

Senator Alexander: Well, there are plenty of ways to figure that out without equalizing spending. This sounds to me exactly like the kind of thing the department got into with academic standards in Common Core. You basically said that states didn’t have to adopt Common Core, but then you came up with requirements on standards that, in effect, required them all to do it. It produced an enormous backlash, which was a big part of passing this law.

So I would urge you to look carefully at this “supplement, not supplant” negotiated rule making proposal, which is in the early stage. Because in my view, it violates the unambiguous prohibitions that were in the law that the president signed in December related to prescribing state and local funding methodologies; mandating equalizing spending—you aren’t supposed to do that; interfering with state and local funding—you’re prohibited from doing that; or controlling the allocation of state and local resources.

It ignores Congress’s intent, which was to not change the law on comparability. It regulates outside the scope of the “supplement, not supplant” requirement. It would impose unprecedented burdens on state and local school districts, requiring an overhaul of almost all the state and local financial systems [and] giving districts few options other than to force the transfer of teachers to new schools, perhaps in direct conflict with collective bargaining contracts of teachers’ organizations. And it would require states to go back to the burdensome practice that we had before. As I mentioned earlier, according to the Great State City School Council, it would cost schools $3.9 billion just for the sixty-nine urban school districts to address state and local funding disparities; $9 million from the department alone.

I have only one other question: flexibility for eighth-grade students taking advanced math. One thing we heard more about than anything else in this reauthorization was about over-testing and the need for more flexibility in testing. We thought we provided that. Well, the new law permits a state to permit eighth-grade students to take an end-of-the-year test for passing the advanced math test in place of the eighth-grade math test. In other words, if you’re an eighth grader and you can take algebra II, you can take the algebra II test instead of the basic eighth-grade test. That just makes common sense, and in fact, the department’s waivers allowed that. Now you are proposing to add a new requirement—one that you apparently just made up—which says a state can be granted this flexibility only if it demonstrates that it offers all students in the state the opportunity to be prepared for and to take advanced mathematics coursework in middle school. I mean, where did that came from? That’s not in the law.

Dr. King: Well this is being discussed by the negotiators. I think the key question here is, to the extent that opportunities are to be equitably provided to access advanced coursework. We know, for example, that there are high schools around the country serving large numbers of low-income students of color that don’t even offer algebra II or chemistry. We know that there are middle schools serving high numbers of low-income students of color that don’t even offer access to the algebra course.

So if you’re going to have an assessment system that provides comparable information about equitable access to opportunity in schools, you need to ensure that students have that opportunity. For a school to not offer students access to that advanced course means that you are using the assessment system to, in a sense, reify inequitable access.

Senator Alexander: Dr. King, if you would excuse me, if you were a United States Senator on the floor of the Senate, that would be a very good and persuasive argument. But you’re not. And we could have written that into the law, but we didn’t.

We basically said that a state may allow an eighth-grade student who’s taking an advanced math course to take the test for that advanced course and not have to take the state’s basic eighth-grade math test at the same time. Now you’ve come on and said, “Well, that’s an interesting idea. We also think it’d be good to make all the states and one hundred thousand public schools change the way they offer advanced math courses to include a lot more students.”

That may be a noble aspiration, but it’s not in the law. And for adding this requirement to money that constitutes about 4 percent of all the money that state and local governments spend on one hundred thousand public schools. Those decisions ought to be left to the elected officials, not to the people in your department.

Dr. King: You can’t get comparable, valid, reliable information about student performance if the assessment is only available to some students and not to others. So the goal here is to ensure that the assessment system provides comparable information.

Senator Alexander: But you’re not in charge of the accountability system. In fact, what the law requires is that the result of those tests be a part of the state’s accountability system. But what we’re trying to get rid of is you here telling states what to do with the results of tests. It must have made common sense to say if you’re an eighth-grade student taking an advanced math course that you can take the test for that course and that you don’t have to also take the basic eighth-grade test—period.  I mean, the department allowed states to do that in the waiver. Why are you making this up now?

Dr. King: In the design of the accountability system, yes, there is state flexibility around accountability systems, but the states are to generate comparable information about the performance of students within any given grade. 

Senator Alexander: Who’s going to decide that? Are you going to decide that?

Dr. King: States would decide how that would work in their districts

Senator Alexander: Well, why not let them decide that?

Dr. King: We are.

Senator Alexander: No, you’ve said in your proposed rule—and I won’t belabor it any further, I hope you’ll go back and take a look at this. I mean, you’ve basically put in a new requirement, that you can only take the flexibility Congress gave if you do what the department now wants to legislate— demonstrate that you offer the opportunity for all students in the state to be prepared for and take advanced mathematic coursework in middle school. It’s kind of hard to know what that would mean anyway.

You were asked by one of the senators, “Do you have anything else to tell us?” You sent proposed regulations to the Office of Management and Budget last week on accountability systems, state plans, innovative assessment pilot. When are you going to make details of those proposals public, what’s your intended timeline for final regulations, and what can you tell us about other areas of the law that you intend to issue guidance on or offer technical assistance?

Dr. King: So, the accountability regulations are now with OMB for review. We expect later this spring, early summer, those comments will be posted for comment. We will later develop regulations based on the input we’ve received from stakeholders on state plans, on the innovative assessment pilot. We expect those regulations to be out for public comment in the fall.

The goal is to have all the regulations in place by the end of the year so states are in a position to develop plans in spring and summer of next year—submit those plans in spring and summer of next year—so that they are ready for full implementation in September 2017.

We’ve also committed to develop guidance on services for homeless students, foster care students, and English learners. But we’re continuing to gather feedback and input from stakeholders and will potentially develop additional guidance documents based on what states, districts, educators, parents, civil rights organizations are telling us they need in order to ensure clarity and have examples of best practices.

Senator Alexander: Thank you, Dr. King. I hope you’ll reflect on this hearing today. We have many different opinions on this committee, and we were able to come to a law. And each of us can speak for ourselves, but for me, I think it is very clear that we did not intend that you come up with some clever way to use one provision, the “supplement, not supplant” provision, to change another provision, the comparability provision, that we deliberately did not change because we couldn’t agree on how to change it. We left the law exactly how it was.

I hope you’ll take another look at that. Your responsibility is to faithfully execute the law and abide by the letter of the law, and I don’t think the beginning of those rule proposals suggest that some of the employees are doing [that]. So we’ll look forward to following the implementation for the law carefully during the rest of the year.